Justice A P Shah, author of the verdict decriminalising homosexuality, is amongst 14 retired judges who have recently attacked certain death penalties awarded by the Supreme Court. Speaking with Manoj Mitta , the former chief justice of the Delhi high court discussed this unusual form of judicial activism, why deciding the death penalty is so difficult – and why India should join other nations abolishing this punishment:

The Supreme Court usually has an aura of infallibility – what made you sign a letter telling the president it had wrongly imposed death sentences in numerous cases?

The issue involved the imminent execution of 13 persons in seven cases, even after the Supreme Court admitted on three occasions recently that its earlier judgments sentencing these persons to death were erroneous. Two similarly situated persons have already been executed pursuant to these flawed judgments – the Supreme Court’s admission of error came too late for them.

The errors occurred beca-use two-judge benches deviated from the liberal law laid down by a five-judge bench in the 1980 Bachan Singh case. How did these benches go astray?

The Supreme Court came up with the solution of ‘rarest of rare cases’ for imposing the death penalty. Bachan Singh’s case gave sufficient weight to the mitigating circumstances of the crime and the criminal. In the case of Ravji, decided by two judges, the Supreme Court explicitly held that it is the gravity of the crime but not the criminal which is relevant to decide appropriate punishment. Thus, Ravji’s case is in direct conflict with the Bachan Singh ruling. The court in Bariyar’s case noticed the conflict and held that seven of its judgments awarding the death sentence were rendered per incuriam, meaning out of error or ignorance.

Following Bariyar’s case, two more judgments condemned the illegal trend of disregarding the Bachan Singh mandate. Why has the Supreme Court not taken corrective action?

The judgments, according to the Supreme Court’s own admission, rendered per incuriam constituted the gravest known miscarriage of justice in the history of crime and punishment in India. The Supreme Court could have reopened those cases in exercise of its discretionary power under Article 142 of the Constitution and taken corrective measures to deliver complete justice to the prisoners. The absence of such measures forced the retired judges to send the appeal to the president.

Can there be a foolproof system of ensuring the death penalty is awarded only in the rarest of rare cases?

The criterion of rarest of rare cases hasn’t resulted in any satisfactory solution. The Supreme Court’s attempt to regulate capital punishment has been unsuccessful on its own terms. Courts and governments worldwide have tried and failed to lay down satisfactory and clear criteria eliminating arbitrariness, subjectivity and inconsistency from the death penalty. As pointed out by Justice V R Krishna Iyer, a legal policy on life or death cannot be left to ad hoc mood or individual predilection.

Do you personally believe India should join the growing number of nations abolishing the death sentence altogether?

Yes. India should join such nations as there is enough reason to believe that the legal safeguards aimed at avoiding a miscarriage of capital punishment have failed to deliver. Public opinion in India can no longer ignore the global movement in favour of abolition of the death penalty. A total of 130 out of 192 UN member states have abolished the death penalty in law or practice – India is one of the countries that retains the death penalty but rarely executes people.

It’s time we accepted that capital punishment neither has any deterrent effect, nor can it be counted as a preventive measure.